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tv   Key Capitol Hill Hearings  CSPAN  February 12, 2014 8:00pm-10:01pm EST

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day weekend on american history tv. >> the senate voted to raise the federal debt ceiling without conditions. ae senate nearly approved motion to advance the bill after ted cruz threatened to filibuster. he was quoted saying that in my view every republican should stand together against raising the debt ceiling without structural reform on our out of control spending. it was added with a vote. mitch mcconnell and john cornyn changed their votes. bill goes to president obama for his signature. for more, we spoke with a capitol hill reporter. >> caitlin huey-burns is joining us. there was a clean bill to lift the debt ceiling for a year is
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now on president obama desk. what made it dramatic? >> what made it dramatic, we knew it would probably pass but in the senate there are procedural hurdles requiring a 60-vote threshold to move to final passage. sometimes they can work out a deal where it just requires a majority vote but ted cruz, a republican in the senate, voiced against using that threshold, moving for 60 votes to move on the bill. that would require at least five republican senators to put their necks out on the line on a bill that's politically hurtful to them. so it was dramatic in a way that we didn't know how many and which senators on the republican side would vote to move forward with this bill. and what was most surprising to us was that minority leader mitch mcconnel who is in a re-election fight, facing a
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primary challenge, was one of those who voted to proceed with this bill. he, of course, is the leader of the republicans in the senate and john boehner, the house speaker, earlier this week, did the same thing. >> what did g.o.p. leadership do to get the votes needed to pass? >> they talked about it during their conference meeting earlier today on the senate side and basically mcconnell and a couple of other republican leaders and republican senators decided to voice support for moving forward with the bill which gave the -- over the of-vote -- over the 60-vote majority they needed. the vote on the closure motion was 6 votes tissue 60 votes. the final passage was on party lines, democrats voting to
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support raising the debt ceil, republicans voting against it. >> you sent a tweet out saying that standing next to mcconnell on the floor were senators who switch thared vote to yes, providing cover for the g.o.p. leader. what reaction has there been to senator mcconnell's yes vote? >> it was a surprise but this is something that leadership does and typically should do, the politics, though, of a mid term election year, especially for mitch mcconnell and especially since control of the senate is at stake, republicans have a chance, to take control of the senate. this move was surprising as it is kind of politically -- can be politically harmful. so it was remarkable to watch a
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handful of other republican senators join with the leader to provide him some cover as well. i would just, you know, point out though for clarification that this was a motion to proceed with the bill. all of these senates ended up voting against final passage. but that procedural vote is really key in getting this over the finish line. >> with the house passing the debt ceiling bill first and now the senate, what does this mean for the influence of conservatives in both of those chambers? >> conservative outside groups are very vocal in their opposition to this bill. they've been vocal in the past and have been pushing boehner to attempt something to the debt ceiling that addresses the debt. but the house speaker exhausted all different kinds of options, policy additions to this bill and decided that going with a clean bill would be the best for the party considering that they
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took a big hit during the government shutdown and in previous battles over the debt ceiling to kind of get this issue behind them and focus on items that unite the party, namely, jobs and the economy and opposition to the health care reform bill. the conservative outside groups will continue to voice opposition, criticize the speaker for this move, but within the chamber itself, there doesn't seem to be wide opposition to, you know, the way things panned out from conservatives. in other words, we're not seeing conservatives rise up and revolt against the speaker or against the minority leader as we have seen in -- during debates in the past. >> caitlin huey-burns is the congressional reporter with realclear politics -- thank you. >> thank you.
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>> on c-span tonight, president obama signed the executive order raising minimum wage for contract workers. the committee: to hearing on approving for voters. president obama signed an executive order raising minimum wage for contract workers. it takes us to the beginning of ceremony,he signing he called on congress to raise the national minimum wage for all workers. this is 20 minutes. [cheers and applause] >> hello, everybody. thank you. thank you, thank you, thank you. thank you. thank you so much. everybody have a seat, have a seat. [laughter] welcome to the white house, everybody. i know you had to come here before you go buy some shovels and some salt.
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[laughter] it sounds like we may get a little snow. but i very much appreciate everybody being here. i want to thank first and foremost the workers who are with me here this afternoon. [cheers and applause] and i want to thank two champions for all hardworking americans. we've got secretary of labor here. [cheers and applause] he's in the house. right here. i didn't know where he was. and we've got outstanding congressman who is used to snow because he's from minnesota, congressman keith ellison.
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[cheers and applause] now, it's been just over two weeks since i delivered my state of the union address and i said this year would be a year of action. and i meant it. over the past 14 days i've ordered an across-the-board reform of our job training programs, to train folks with the skills that employers need and match them up with good jobs that are ready to be filled right now. i've directed the treasury to create something we're calling myra. kind of like an i.r.a. but it's myra. and that's a new way for americans to start saving for retirement and you can start with as little as $25, $50, and start building up a little bit of a nest egg. and get tax benefits for doing so. we've rallied the leaders of some of america's biggest high-tech companies to help us make sure that all of our kids have access to high-speed internet and up-to-date technology in their classrooms, so that they're learning the skills that they need for the new economy.
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we brought together business leaders who are committed to hiring more unemployed americans, particularly long-term unemployed who oftentimes are discriminated against. they're in a catch-22. they haven't had a job for a while and then the employer's not willing to look at the resume because they haven't had a job for a while. so the point is, i'm eager to work with congress whenever i can find opportunities to expand opportunity for more families. but wherever i can act on my own without congress, by using my pen to take executive actions, or taking up the phone and rallying folks around a common cause, that's what i'm going to do. [applause] and so, that brings me to the issue we're going to talk about
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today. after the worst economic crisis in generations, our economy has been growing for the past four years. and our -- [applause] our businesses have created 8 1/2 million new jobs. unemployment rate has come down. but while those at the top are doing better than ever, corporate profits have been high, stock market has been high, average wages have barely budged. so you've got too many americans who are working harder than ever before just to get by but they can't seem to get ahead. can't seem to make all the ends meet. and that's been true since long before the recession hit. we've got to reverse those trends. we've got to build an economy that works for everybody. not just the fortunate few. and we've got to restore opportunity for everybody. so that no matter who you are, no matter how you started out,
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no matter what you look like, no matter what your last name is, you can get ahead in america if you're willing to work hard and take responsibility for your life. all right? [applause] so the opportunity that i've laid out is going to help us do just that. part one of this agenda is more new jobs that pay a good wage. jobs in manufacturing and exports and energy and innovation. part two, we've got to train the folks with the skills to fill those jobs. part three, we've got to make sure every child gets a world-class education. and part four, we've got to make sure that the economy rewards hard work for every american. making hard work pay off with economic security and decent wages and benefits is what we're about here today.
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it means making sure women earn equal pay for equal work. [applause] it means making sure workers have the chance to save for a dignified retirement. [applause] it means access to affordable health insurance that gives you the freedom to change jobs or be your own boss and the peace of mind that it will be there for you when you get sick and you need it most. [applause] so if you know anybody who doesn't have health insurance right now. [laughter] send them to, website's working. [laughter] sign them up. you can get health care for less than your cell phone bill for a lot of folks. but it also means that in the wealthiest nation on earth,
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nobody who works full time should have to live in poverty. nobody. [applause] not here in america. now, it was one year ago today, one year ago today that i first asked congress to raise the federal minimum wage. a federal minimum wage that in real terms is worth about 20% less than it was when ronald reagan took office. 20% less. 1/5 less. so this afternoon i've invited some of the folks who would see a raise if we raise that federal minimum wage. they happen to join me here at the white house. and like most workers in their situation, they're not teenagers, they look like teenagers, some of them are very young looking.
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but they're not teenagers taking on their first job, they're adults. average age of 35 years old. a majority of lower-wage jobs are held by women. many of them have children that they're supporting. these are americans who work full time, often to support a family, and if the minimum wage had kept pace with our economic productivity, they'd already be getting paid well over $10 an hour. instead the minimum wage is still just $7.25. and when congress refuses to raise it, it will lose its value because there's a little bit of inflation, everything else starts costing a little bit more, even though inflation's been pretty low, it's still
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costing a little bit more each year. that means each dollar isn't going as far and they've got a little bit less. so over the past year the failure of congress to act was the equivalent of a $200 pay cut for these folks. for a typical minimum wage worker. that's a month worth of groceries. maybe two months worth of electricity. it makes a big difference for a lot of families. now the good news is that in the year since i first asked congress to raise the minimum wage, six states went ahead and passed laws to raise theirs. [applause] we appreciate that. you got more states and cities and counties that are taking steps to raise their minimum wage as we speak. and a lot of companies are doing it too. not out of charity, but because they've discovered it's good business. two weeks ago i visited a costco store in maryland. costco is a very profitable company. its stock has done great. it's expanded all over the place.
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but their philosophy is, higher wages are a smart way to boost productivity and reduce turnover. if employees are happy and feel like the company is invested in them, then they're going to do more for the company. they're going to go above and beyond. and when i was at costco, i was meeting folks who had started off at the cash register and now were in supervisory positions and had been there for 20 years and you could see the kind of pride they had in the company because the company cared about them. i even received a letter the next day from a woman who saw my visit on tv. she decided to apply for a job at costco. she said, let me apply for a job at costco. they look like they do a good job. so across the country owners of small and large businesses are recognizing that fair wages and higher profits go hand in hand.
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it's good for the bottom line. and as america's chief executive, i agree. so, while congress decides what it's going to do, and hope this year, and i'm going to work this year and urge this year that they actually pass a law, today i'm going to do what i can to help raise working americans' wages. so today -- [applause] so today i'm issuing an executive order requiring federal contractors to pay their employees a fair wage of at least $10.10 an hour. [cheers and applause] this will make a difference for folks.
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right now there's a dish washer at randolph airport base in texas making $7.76 an hour. $7.76 an hour. there's a fast food worker right down the street making $8.91 an hour. there's a laundry worker at camp dodge in iowa making $9.03 an hour. once i sign this order, starting next year, as their contracts come up, each of them and many of their fellow co-workers are going to get a raise. and by the way, that includes folks who get paid in tips. they'll get a raise too. [cheers and applause] tip wages have gone up even slower than the regular minimum wage. just as it's good for company as i cross the country, this will be good for america's bottom line.
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for contractors and for taxpayers. the opponents of the minimum wage have been using the same arguments for years. and time and again they've been proven wrong. raising the minimum wage is good for business and it's good for workers and it's good for the economy. puts more money in these folks' pockets, that means they've got some money to go shopping. which in turns means a business has more customers, which means they may hire more workers and make more of a profit. and let's not forget, it's the right thing to do. there's a simple, moral principle at stake. if you take responsibility and you work as hard as these folks work, you shouldn't be living in poverty. not in america. we believe that. [applause] and this executive order will cover americans with disabilities.
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because this principle doesn't just apply to some of us, it affects all of us. [applause] so, i'm going to keep doing whatever i can to raise working americans' wages. and i would ask any business leader out there, any governor, any mayor, any local leader listening, do what you can to raise your employees' wages. to work to raise the wages of citizens in your jurisdiction. they'll support these efforts. a majority of americans, not just democrats, not just independents, but republicans too support raising the minimum wage. [applause] it's the right thing to do. so that's something congress should keep in mind this year. there's a bill right now in
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front of both the house and the senate that would boost america's minimum wage to $10.10 an hour. just like i'm doing with this executive action. it's easy to remember. $10.10. $10.10. let's get that done. raise the federal minimum wage to $10.10, wouldn't just raise wages for minimum wage workers, its effect would raise wages for about 28 million americans. it would lift millions of americans out of poverty immediately. it would help millions more work their way out of poverty without requiring a single dollar in new taxes or spending. it's the right thing to do. just last month 600 economists, including seven nobel prize winners, wrote the leaders of houses of congress to remind them that the bill before congress would have little or no negative effect on hiring. on jobs. so it's not going to depress the economy. it will boost the economy. yes. [laughter] it about will give more businesses more customers with
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more money to spend it. will grow the economy for everybody. so, yeah. he's excited about it. [laughter] so members of congress have a pretty clear choice to make right now. raise our workers' wages, grow our economy, or let wages stagnate further and give workers what amounts to another pay cut this year. restore unemployment insurance for americans still looking for that job. or expose them further to hardship. [applause] members of congress, you can help people make progress in their own lives or you can hinder that progress. and every american deserves to know where your elected representative stands on this issue. so ask your senator, ask your representative in the house, do you support raising the federal minimum wage to $10.10 an hour? if they say yes, tell them, good job.
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they don't hear that that often. give them a pat on the back, give them a hug. let them know, way to go. that's the right thing to do. if they say no, be polite, don't just yell at them but say, well, why not? ask them to reconsider siding with an overwhelming majority of americans. encourage them to say yes. give america a raise. i'm about to sign this executive order. when you hear me talking about my pen and my phone to make a difference for middle class americans, this is exactly what i mean. i'm going to do what i can, congress should do what it needs to do. i will not give up on this fight no matter how long it takes. america deserves a raise. working families deserve to know more economic security in their own lives. we've got to create new jobs,
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bring the middle class, build new ladders of opportunity for folks working their way into the middle class, just like these folks are doing right here. there are millions of americans who could just use a little bit of boost. millions of americans outside of washington who are tired of the old, stale political argument or tired of folks just looking out for people who can afford big lobbyists and big campaign contributions. there are folks out there who want to see us restore an economy that works for everybody. and get back to our founding vision of opportunity for all. so, i know you guys will work with me. but go out there and organize some more. thank you, everybody. let's give americans a raise right now. i'm going to sign this. [applause] [inaudible]
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[cheers and applause] [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014]
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[applause] >> the labor secretary was at the daily white house briefing to talk about the president's executive order and to call for raising the federal minimum wage. this part of the briefing is 20 minutes. >> thank you. good afternoon. the president has said that this year will be a year of action. today he will take an important step to expand opportunity by
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rewarding hard work with fair wages. in a short time from now the president will sign an executive order to raise minimum wage to $10.10 to workers who are making minimum wage on contract. if you're a nursing assistant caring for our nation's veterans, if your staffing the parking lot at the federal courthouse or if you're working concessions that are national parks, then you deserve a raise. as the president said in the state of the union address, if you cook our troops meals are washed their dishes, you should not have to live in poverty. the president believe the government should lead by example, joining many other private this is his who recognize that fair wages are the right and smart thing to do and the efficient thing to do. we estimate that the executive ofer will benefit hundreds thousands of people directly by increasing their pay, but it will also improve taxpayer's return on their investment. higher wages make for a more
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productive workforce, and thus improving the quality and efficiency of services to the government. this is just the first step. every american worker needs a raise. that would take an act of congress. the administration will continue willsh strongly, the bill increase the minimum wage to $10.10 per hour. with that, i am happy to take any questions. >> secretary, do you have an estimate on how many workers are going to be helped by this federal contractors question mark -- contractors? >> we estimate it'll be in the hundreds of thousands. the reason we do not have a more precise estimate is as we finalize the regulations in the course of the ensuing months, that will give us a better handle on that. i have read studies that indicated it was in the
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millions. we believe that is too high and the assumption involved in that testament, including the fact that they had a $12 an hour minimum wage. those assumptions did not apply to the executive order the president will be issuing. we are confident our estimates are where the actual number will be. >> you said hundreds of thousands. during what time frame? >> goes into effect january 1 of next year. of every contract will come january 1 of next year. in the course of the ensuing time frame which will be months and years for contracts to come to the end of their life and be renewed, then you'll have more and more people benefiting. the president was very explicit about not wanting it to interfere with contracts that are already in place. >> i'm asking you a specific western. you give us an estimate and claim this will benefit hundreds of thousands of workers. so, is this during the first
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year, first five years, what timeframe? >> hundreds of thousands of workers as new contractors come in place. they will come in place over the course of years >> over the course of eternity? >> 3-5 years. more will benefit year one, year two, year three, and even more in the pursuing years. >> what percentage make the minimum wage or less than $10? >> we do not have a precise figure. we are still finalizing the regulations and preparing regulations. the estimate that there are hundreds of thousands of workers who will in effect from this. this means they are making below $10.10 an hour. >> you are raising the wages. what would be the costs?
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>> all federal agencies will do this within their existing budget. the reason why this is the efficient thing to do is because when employers are paying a fair wage, they have a more efficient workforce. so, we are confident that dislikes him any other private sector companies that it paid a fair wage and have low attrition and an effective workforce, we will realize the same efficiencies here. >> you're not allowing the price of the contract to go up? >> all of this will be implemented within the existing budget agencies. it is not a bump up in the budget to account for this. the consistency of paying a fair wage are what we will gain from this executive order. timesesident has said any that the federal government should set the example. that is what we are doing. thatere are some that hope
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this would apply to legal contracts. can you explain why that decision was not made? >> the president made a judgment and i agree that it should be applied to new contracts. in the middle of the contract, there is not the distraction of having a wage inserted that wasn't in place when you negotiated the contract to begin with. >> would they be litigation over that? >> the president wanted to draw an appropriate balance between ensuring that we have a minimum wage and also minimizing disruption on contractors and changing the rules in the middle of a contract we felt would be disruptive. that is why it applies to future contracts and doesn't take effect until january 2015. some economicbe lag time before it can be enjoyed and translated to the broader economy? >> any law you put in place will have an effective date. this is no different than any other law, whether it increases
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the minimum wage, and effective date on the road, we have issued regulation to help workers. we want to work with the various stakeholders to ensure the effective implementation of that . this is no different than any other law that would address these important issues for people. something obviously that the president can do with his pen. how likely is it that you will get congressional support for doing a broader minimum wage hike? there's not a lot of advertisement of this among republicans. >> i look at where the american people are. regardless of your ideological stripes, there's a strong support of the minimum wage. is up with the proposition that no one who works a full-time job
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should have to live in poverty. the members of congress go home, they listen to their constituents. i was in new jersey listening to baggage workers who were working and work airport and talking about how they are making choices between food and health care. a guy's son turned 16 and he had to look him in the eye and said he could not buy him a birthday present because he needs to buy food. these are stories we hear across the country. it has always enjoyed strong bipartisan support. so, this issue has enjoyed bipartisan support. i'm confident that it will continue to and we will fight hard. hard, people are working and falling further behind. that is not right. >> what do you think needs to [indiscernible]
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>> when members listen to their constituents, they will see that people are working 40-50 hours a week and they are on food stamps. they will see that we are subsidizing the banking industry to the tune of $900 million a year because you got bank tellers that are working and collecting food stamps. the fast food industry subsidized to the tune of $7 billion a year. if we want to reduce reliance on public subsidies like food stamps, if we want to promote self-sufficiency within think there is bipartisan support for, if we want to make sure we reward work and really acknowledge the dignity of work, raising the minimum wage makes a lot of sense. i think the american people are ahead of some in congress. i'm confident as people go back
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and listen to their constituents that this movement will continue to row. -- grow. this is not indexed for inflation? >> it is indexed for inflation. >> in the job training project, is there a time frame? for which that work will be completed? >> we are working because he want to get back to the american people as soon as possible. i meet with the vice president with great regularity as we draw a blueprint for ensuring that people have career pathways and tickets to the middle class that come when you have access to training and upward mobility. >> thank you. -- other people federal government employees who earn less than $10.10 an hour now?
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people at the labor department are justice department or at the white house who are earning less than that $10.10 figure now? >> i'm not sure did answer -- i'm not sure of the answer. i will have to get back to you. we are looking into ways to address those issues as well. last month the president talk about helping out the long-term unemployed by encouraging him pennies to overlook their appointment history and the credit scores. -- why is thatg good business practice? with manymet long-term unemployed in the course over the last two months. what i saw that these are people with immense talent. they find themselves in a predicament that is no-fault of their own. they are the quintessential catch 22. i cannot pay my bills rainout.
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i need a job to pay my bills. -- i cannot pay my bills right now. i need a job to pay my bills. the president told companies to help address this issue. it was a fascinating conversation. what we realized is that you are so many companies who have practices that are benign, such as a credit check. i can understand why someone would want to do a credit check for someone, but the reality is if you have been unemployed for two years, you probably missed a couple of payments. we saw a willingness from companies to look at peoples abilities and take a fresh look. we also compare and highlighted many best practices, including the fact that we have the authority and are involved in very promising work where we subsidizing wages. if an employer hire someone who is long-term unemployed right now, we will pay have to wait
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over 6-8 months. but we have found is that the program works well. that convening really helped us shine a light on this issue. we have a $150 million grant that is going out imminently to further promote those best practices. >> two employees who are otherwise equally qualified, one has been employed friday the other because been unemployed for 3 -- one who has been unemployed for one day and the other one who has been unem you saying13 months, the company should look at that? >> the person who has been unemployed for 13 months has tremendous talent. we have heard from companies that used to say, you know what, you still look skeptically at the person who has been out 13 months. we took a risk. they are some of our most productive employees. that is what we are trying to
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communicate. placemes we put in certain filters that prevent us from seeing potential in people. that is what this initiative is about. i was really hearkened at the spirit of enterprise. it is similar to our action in hiring veterans. employers have really stepped up in a big way. i'm confident we will see the same thing happen here. if thender why administration feels so strong about this, why did they not do this before? it goes back to the executive order. is this something you pushed for personally? something that would've had a negative impact on the economy a couple of years ago? very, president has been very strong in stating that we have to reward work with a fair wage. he has continued to work with stakeholders across the aisle in an effort to raise the minimum wage.
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over the course of the last year, that has been unsuccessful to date. areconfident that the winds changing in that context. the president thought it was important for the federal government to model behavior. we cannot go out until the private sector that they need to raise the minimum wage and we are not practicing what we preach. that is what the executive order is all about. act is what we speech and model best practices and demonstrate that you can pay a fair wage and have inefficiently run government and help put money in andle's pockets -- efficiently run government and help put money in people's pockets. there has been discussion about the potential of an executive order that would stop contractors from discriminating. if the president were to sign an executive order, the department can prevent it? the president takes a
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accesst in equal regardless of race, gender identity. it is an issue that we contemplated work on. about theas been talk that can beer applied to other workers. with a take that step? -- with the labor department take that step? under i have asked my staff to extradite that so we can bring it to a conclusion at that labor department. i'm hoping it will come to an end as soon as possible. >> in terms of the president has been in office for more than five years, why is this coming now? it is now and not in 2009 or 2010.
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what has changed? >> we were dealing with the great recession. leading 800,000 jobs a month. montheding 800,000 jobs a . the president was focused on the recovery act and all of the issues that were involved in trying to stop the bleed and prevent the economy from going into a depression. he succeeded in doing that. there are so many things that jay is more conversant in. the president has taken multitasking to new levels in this administration. it does not reflect a lack of interest in this. it reflects the fact that we .ere confronting a crisis as the economy continues to grow
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and we have seen 47 consecutive months of private sector job growth to the tune of a .5 million ever sector jobs, the time is in the present judgment to work on the minimum wage and put more money in people's pockets and really address this issue of fairness. now is the right time. the president will continue to do his best to ensure not only the implementation of this, but also to ensure passage of a federal minimum wage hike. thousands,undreds of how many hundreds of thousands? >> as we develop the regulation, we will have a better sense of that. as soon as we have been better since, we will let you know. contractorsaying will pay more money to their employees, but this won't cost any more money?
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is that what you're saying? >> federal agencies will be doing this within the existing budget. again, there is a pretty robust body of evidence that demonstrates that when you have a workforce that receives a fair wage, you lower attrition and increase efficiency and you can do more. costco pays a fair paysand a hardware store above the minimum wage. i think there's a very strong body of evidence that demonstrates that. you're saying it will not cost the budgets more? the the contracts themselves costs more? instead of 10 contracts, would it become nine? the contracts could end up costing more. >> we do not know that.
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we do not know. agencies are operating within the existing budget. businesses will bid on these contracts. pay the, many of them minimum wage or a higher minimum wage. this will not be an increase in cost to them. i think it will be in accurate suggestnaccurate to without further evidence that would happen. have revealing wage loss that have been in effect for decades every part employers to pay prevailing wages that are far above minimum wage. nothing contracting dry up or go away. when i was a labor secretary maryland, we sent increase in the number of contractors. when you promote efficiency like we are doing here, good things happen. >> thank you, mr. secretary. >> thank you.
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[captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute] >> i think every first lady brings their own perspective to this job. if you didn't, you could not live through it. to the extent that this feels natural to me at any level, never would have thought that living in the white house would feel natural. i try to make it me. i try to ring a little bit of michelle obama into this unit at the same time, i respect and value the tradition that is america's. >> watch michelle obama on our website on monday, we conclude our series with a special two-hour program looking at all of the first ladies from martha washington to michelle obama. the new website
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gives you access to an incredible library of political events with more added each day coverage of nonstop politics, history, and nonfiction books. daily coverage of washington are access more than 200,000 hours of archived c-span videos. everything c-span is covered since 1987. videos are searchable and viewable on your desktop computer, tablet, or smart phone. look for the search bar at the top of each page. the new makes it easy to watch what is happening today in washington and find people and events from the past 25 years. it is the most comprehensive video library in politics. the presidential privacy and civil liberties oversight board issued a report saying that nsa
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collection of phone records may be constitutional, but is not authorized by law. the board members who wrote that report testified before the senate judiciary committee, along with two members who refused to sign onto the majority's finding. the committee is considering changes to federal surveillance robots after details of the release -- of the leaks by nsa contractor, edward snowden. this is an hour and 45 minutes. >> i'm pleased to begin this hearing of the senate judiciary committee on the report of the privacy and civil liberties oversight board on reforms to
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section 215 telephone records row graham and the former intelligence board. i appreciate you being here, all five members of the board are here. most important, your extraordinarily impressive all the more so because of the less than ideal conditions under which you did it with very few staff and high time pressure. i am struck by the thoughtful analysis which is exceptional, but also exceptional in the fact that this issue has received so little thoughtful and office over the time that this surveillance and intelligence gathering program has received. for years, the program has been hidden in the public and the
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legal justification of it was not available to anyone. in fact, the legal justification was not done. that is more shocking even than the hiding and the secrecy involved in the program. this is a program was made public, we have seen legal justification from the executive branch and opinions from the judiciary. none of the publicly available analysis has addressed all of the crucial questions that you discussed in your report. i thank you for that contribution. i am absolutely shocked and deeply disturbed that eight years after this metadata program, the ball collection program was authorized. the courts had still not carefully and -- carefully were through the issues that surround the program.
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we expect that there will be such analysis before the .xecutive branch acts here, there apparently was none. even the two members of your board acknowledged that the board has raised significant -- l issues that could the american people deserve better. that is one of the reasons we are here today. they deserve better. engaging in conduct that the vendor say my the illegal. the second major achievement of this report is that it sheds oldt on the history of the telephone metadata program. we learned from your report that a judge authorized the collection of phone records are potentially every american without so much as issuing a
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written opinion. it is incredible, absolutely shocking. issued anudge howard order allowing the government to collect phone records of law-abiding americans with no known connection to any crime. telephone records on every american that was not even suspected of committing any crimes. he chose not to provide a sentence explaining his legal reasoning. that is all the more disturbing when you consider the legal context. in 2006, the attorney general passed a law to any major ruling come and he made sure -- any major legal ruling, but only if the fisa court wrote an opinion. when judge howard decided that he was not going to write an opinion, the decision presented
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congress from learning the legal basis for a massive change in the government claiming to serve on authority. it is an important and essential point. whoe are some americans agreed that the fisa court should have an adversarial process, but they would allow it only if the fisa court judge asked for it. it appears that the judge first signed off on the bulk metadata program that even its supporters egg knowledge -- acknowledge and didn't think that the issue warranted an opinion. i'm not blaming judge howard for his submission. judges are not expected to decide what is important and often cannot do so without a lawyer raising an issue and highlighting it and arguing and saying that it is crucial.
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all the more reason the adversarial process has to involve a constitutional advocate in my opinion. the legal basis for this order was not only not -- there are reasons in your report to question the effectiveness of the old metadata program. in fact, we have learned more recently that haps only 30% of the phone calls were collected. only a proportion of the supposedly copy sensitive collection of phone calls were actually absorbed or collected by the government. it contradicts representation made to the court in justification of the program
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itself. representations made by the resident are undercut by that potential back. that thes effectiveness of the program may be in question. there was an issue based in your report that is highly significant. these kinds of issue deserves to effectived and more and comprehensive than they have been. one of the reasons we are having this hearing is to give you an opportunity to continue your conversation with the american public about these critical issues. i want to again thank you idling on my behalf, but also for chairman leahy -- not only on my behalf, but also chairman leahy. if there's no objection, i asked that this be made part of the record. i turned to the ranking member. >> i have a statement i will read. before i do that, i want to say
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that i had the same concerns that senator blumenthal just expressed. i also want to make it clear that if i did not have the same concerns, i would be upholding the constitution and the fourth amendment, but also i think i would take into consideration a balance between our number one responsibility, national security, and the requirements of our civil liberties. first of all, thank you for joining us. thank you for holding this hearing. i welcome the board members that are with us. the entire board, it is good that the committee has held many hearings on the surveillance authorities. the committee will undoubtedly hold more sure of most important responsibility is to protect national security while at the same time reserving our civil liberties. the nsa continues to be a great concern to my constituents in iowa and obviously across the
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country. over the last few months, i have thrown more concerned about why the justice is not prosecuted the few nsa for you to willfully abused their surveillance authority. we do have examples of where it has been abused. i haven't had an answer yet. i did write a letter to the attorney general about this back in october. still, no response. a few weeks ago, i press the attorney general for an answer. he did not have an. he committed to getting me bring -- getting a response -- he did not have an answer. he committed to bringing me a response. a month or so ago, the president weighed in on these important surveillance reform matters. time for our
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commander in chief to become engaged in this issue. surveillance authorities are critical for our national security. some of the reforms in his speech concerned me, like the idea that we were breaking agassi writes of potential foreign terrorists. on the other hand, other reforms the president announced seemed promising. for example, to the extent that it does not compromise national security, increase transparency can help to restore the public's confidence in our intelligence community. indeed, not long after his speech, the administration announced new rules that will permit companies to be far more transparent with the customers about fisa court orders. the president also announced a --orms so requirednment is not to obtain a separate port order orry time it seeks to assess
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assert metadata except emergency situations. program that the metadata be held by the telephone companies. he apparently believes this can be done without compromising the program's operational value. there are many questions about whether such an arrangement is desirable or even possible, but the administration is currently exploring options implementing this change, and it's my understanding they're supposed to have a report ready by march 28. it was against this landscape that this board before us issued its report a few weeks ago. the report contains a number of recommendations that i'm interested in hearing more about. for example, many of the recommendations in the report concerns increased
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transparency. a very worthy goal. all but one was adopted unanimously by the board reporting today to us. over -- moreover, they are similar to the reforms that the president proposed. additionally, the report recommends that the fisa court be able to call upon a pool of advocates from outside the government. these advocates would provide an independent perspective but only in cases that the judge decides presents novel or significant issues. this recommendation was also adopted unanimously. it's also similar to the president's proposal as well as the approach in the committee that passed out of our senate intelligence committee. the board's remaining conclusions, however, was that section 215 metadata program is illegal and should be terminated. of course, this recommendation received the most media attention. it was adopted only by a bear majority of the board before us on a 3-2 party line vote. the board's conclusions on this
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point is striking, given that it is inconsistent with the opinions of so many other authorities that have evaluated the lawfully of section 215 program. for instance, the board's conclusion is contrary to the opinion of the president of the united states who, as you know, proudly says and legitimately so that he's a formal constitutional law professor as well as even the department of justice taking that same position. it's contrary to the position of prior administrations that initiated the program. it's contrary to the administration of -- position of 15 fisa court judges. it's contrary to the opinion of two of three district court judges who do not serve on the fisa court but have nonetheless considered the issue. and of course, it is contrary to the opinion of two of the board's plebs. nevertheless, as we -- members. nevertheless, as we consider these reforms, i welcome of hearing a wide range of views,
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and i thank the board for tony blair contribution to public service on this very -- board for their contribution to public service on this very important issue. >> don't know if senator franken would like to say any remarks. >> i'll wait until the questioning. >> very good. thanks. i'd like to ask the panel to please rise and be sworn as is the custom of our committee. do you affirm that the testimony that you're about to give is the truth, the whole truth and nothing but the truth, so help you god? thank you. i understand you have a brief opening statement but before you do, let me introduce the panel, if i may. david medine, chairman of the pclb, has been the board's chairman since may of 2013. before becoming the chair, he worked as an attorney fellow at the securities and exchange commission and special counsel
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at the consumer financial protection bureau. he was previously a partner focusing on privacy and data security at wilmer hale, senior advisor to the white house economic council and associate director for financial practices, focusing on privacy issues at the federal trade commission. and also was professor at indiana university and george washington university law school. he has a b.a. from hampshire college and j.a. from the university of chicago. rachel brand is chief counsel for regulatory litigation for the united states chamber of commerce. ms. brand has held a number of positions at the department of justice during the president george w. bush administration, including assistant attorney general and principal assistant deputy attorney general for regulatory policy officer. she worked in the white house counsel's office and clerk for justice anthony kennedy and
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justice charles freese of the supreme court. supreme judicial court of massachusetts. she's also practiced law at wilmer hale. she has a b.a. from the university of minnesota and a j.d. from the harvard law school. elisabeth collins cook is counsel in the regulatory controversy and regulatory and government affairs department in the washington, d.c., office of wilmer hale. ms. cook previously served as the republican chief counsel on the supreme court, nominations for the senate judiciary committee and assistant attorney general for legal policy at the department of justice at the end of the bush administration. she served as a number of the board of governance at the terrorism screening center and law clerk to justice laurence silverman of the united states
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court of appeals for the d.c. circuit and judge lee rosenthal for the southern district of texas. she holds a b.a. from the university of chicago and a j.d. from harvard law school. james dempsey is vice president of public policy at the center for democracy and technology, a nonprofit focused on privacy, surveillance and other internet issues. mr. dempsey previously served as deputy director of the nonprofit center for national security studies and special counsel to the national security archive. prior to that, he was assistant counsel to the house judiciary committee subcommittee on civil and constitutional rights and an associate at arnold and porter. he, too, was a law clerk. in his instance for judge robert broucher of the massachusetts supreme judicial court. he served on -- as a member of
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several bodies addressing these issues, including the industry advisory board for the national counterterrorism center and the transportation, security administration scurep flight working group, among others. he has a b.a. from yale university and a j.d. from harvard law school. and finally but certainly not least, i'm particularly proud and pleased to welcome a native of connecticut, judge wald, who has served with extraordinary distinction for 20 years on the united states court of appeals for the district of columbia, including five years as chief judge. she has also continued her public service as a judge on the international criminal tribunal for the former yugoslavia and a member of the president's commission on intelligence capabilities of the united states regarding weapons of mass destruction. she served in president carter's administration as the
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assistant attorney general for legislative affairs in the department of justice. she also previously worked as an attorney at the mental health law project, the center for law and social policy, the neighborhood legal services program, the office of criminal justice at the department of justice and co-director of the ford foundation, drug abuse research project. judge wald clerked for judge jerome frank of the united states court of appeals for the second circuit. she received her b.a. from connecticut college for women and her j.d. from yale law school. i might just say she's been inducted in the connecticut women's hall of fame. we welcome all of you. we thank you for being here. i understand you have a brief introductory statement that will be submitted by the chairman and please proceed. thank you. >> on behalf of my fellow privacy and civil liberties oversight committee, thank you,
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grassley. n, senator this is an independent executive branch agency tasked with ensuring that our nation's counterterrorism efforts are balanced with the need to protect the privacy and civil liberties. before beginning my testimony, i want to state our respect and admiration for the men and women in the intelligence community who work tirelessly to protect this country while maintaining our values. we have the highest regard for them. last june at the request of members of congress and the president, our board initiated a study of the bulk telephone records program conducted by the national security agency under section 215 of the u.s.a. patriot act. the study included classified briefings with officials from the n.s.a., the department of justice, the f.b.i. and the c.i.a. board members also met with white house staff, former presiding judge for the fisa court, academics, private and civil liberties advocates, technology and communications
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companies and trade associations. in addition, we received a demonstration of the operation and capabilities at the n.s.a. the board has been provided access to classified opinions by the fisa court and classified documents relating to the operation and effectiveness of the program. at every step of the way, the board has received the full cooperation of the intelligence agencies. consistent with our statutory mandate to operate publicly, were possible, the board held two public forums and solicited public comments. in our january 23 report, the board concluded that the section 215 bulk telephone program lacked viable need, implicates constitutional concerns under the first and fourth amendments, raises serious threats to privacy and civil liberties as a policy matter and is shown limited value. as a result, the board recommends that the government end the program. the majority concluded that particular live telephone record searches can be used with existing authority.
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two took that it's a reasonable reading, made in good faith by numerous officials in two administrations of different parties and constitutes a good faith effort to subject a potentially controversial program to both judicial and legislative oversight. the board unanimously recommends that the government immediately implement several additional privacy safeguards to mitigate the privacy impact of the present section 215 program. specifically, the government should reduce the retention period for the bulk program from five years to three years, reduce the number of hops used in contact change from three to two, submit the n.s.a.'s reasonable sprigs determinations to the fisa court for review after they've been approved by the n.s.a. and use to query the database and have a r.a.z. determination to otherwise analyze the corporate -- e which results querys queries. the fisa court modified its
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primary order to require primary judicial approval before the database is queried. and consistent with the board's recommendations, the court reduced the permissible queries from three to two hops. the board's report also addressed the operation of the fisa court. the court's procedures have raised concerns it does not take adequate account of positions other than those of the government. the board believes that some reforms are appropriate that would help bolster public confidence and the operation of the court, including creation of a panel of private attorneys or special advocates who can be brought into cases involving novel and significant issues by fisa court judges. development of a process facilitating aplate review of fisa court decisions and increased technical assistance and legal input from outside parties. we believe that our proposal successfully ensures the ability of the court to hear opposing views while not disrupting the court's operations or about the role of advocate. the board believes to the maximum extent possible
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consistent with national security, declassification of the fisa court with minimal reductions should be made publicly available. finally, the board believes that the scope of surveillance authorities affecting americans should be public while sensitive operational details regarding the conduct of government surveillance programs remain classified. two board members declined to join this recommendation. all of the board's recommendations regarding the operations of fisa court and six of the seven regarding transparency are unanimous. the board thanks you for the opportunity to testify before the senate judiciary committee today regarding our report. we'd be happy to answer any questions any committee members may have. >> thank you. i'm happy to give other members of the panel an opportunity to speak separately by way of introduction, but if not, why don't i just begin with some questions. let me ask you as the chairman, . medine, would the apparent revelation that perhaps only a
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proportion of this telephone data was aptly collected, changed for your report? >> i don't think we can address in public session the pros and cons of that session but would be happy to meet in private session. even if the reports were true, it still means that hundreds of millions of telephone records are being collected, and so at least it's my view it would not change the recommendations of the board. >> would it undercut the accuracy of representations made by the united states government to the courts to justify this program? >> again, i don't want to comment on that. some of these matters remain classified. i think there's more to be said on that. i don't think it can be said in public session. >> let me put it different. wouldn't you agree with me that the united states government has misled the courts, whether purposely or inadvertently in justifying this program on the basis that all telephone records are collected?
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>> again, i'm not prepared to confirm any of the reports that have been made. so i don't want to draw any conclusions about representations that were made in any court proceedings. >> let me then just move on to a separate line of questioning. is it fair to say from your report that the present bulk metadata collection program is unjustifiable under existing law? >> that's the conclusion of the majority of the board, yes. >> it is illegal? >> yes. it's not consistent with section 215 authority. >> so in order to continue it, if the congress chooses to do so, we would have to change the statute? >> that's the majority's view. although, again, the majority would also counsel that even if you change the statute and resolve the statutory issues, we still believe there are serious constitutional issues and very serious policy issues relating balancing national security with privacy and civil liberties. given there are alternative legal authorities to be used,
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the majority' view is to abandon 215 and use legal authorities. >> so in addition scrap 215 and rely on alternative authority? >> exactly, yes. >> has the panel reached any conclusion in terms of timing as to whether our consideration and perhaps revision of 215 or other authorities should await resolution by the united states supreme court of some of these issues that may come before it in cases that are now in the lower courts? >> the panel hasn't addressed that question specifically. given both the legal and policy concerns, i think the interest would be to move forward and try to resolve those issues sooner rather than later. >> because we have no assurance knowing the united states supreme court, whether it will in fact address those issues considered relevant for the congress to act, that's up to the court to do? >> yes. we only have the district court
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decisions now and have to work its way through the system. at least the majority believe that action should be taken on the program sooner rather than later. >> there's no telling whether or not the united states supreme court will resolve those critical issues and when it will do so? >> or how it will do so as well in terms of providing guidance. >> let me ask you and judge wald. n the issue of the adversarial process, i understand that the conclusion of the panel was advocate -- i've called it a constitutional advocate -- should be enlisted only when the court thought there was a novel or important issue. my view is that the constitutional advocate should make that decision and be involved whenever she thought
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an important novel or issue was raised by a warrant. not necessarily or usually before the warrant was issued so as to not delay the process ut at least afterwards and now it gets to what happens in the ordinary criminal process where there is the opportunity to challenge the legality of a search or surveillance after the fact and the evidence can be excluded. isn't it often the case, let me ask you, judge wald, that judge sees important or novel issues without counsel saying in effect this issue is critical, it's decisive, it's unresolved by other courts or resolved badly, don't judges benefit by hearing that argument to be made by counsel?
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>> yes, senator, they certainly do. because i was forewarned that this might be a question, i did a very brief look at some of my own experience 20 years on the d.c. circuit, and i looked at only one year's opinions which i was involved in. there were 33 opinions. particularly in the 1980's, and seven times out of the 33 opinions which i wrote that year, and i was only one of 10 judges. i don't know what the record would be of the other nine judges, but seven of those were sent back to the district court because the district court had not discussed what we considered to be an important legal matter. and i would say that that number might even be low because, as you well know,
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there is a doctrine in the regular courts that if you didn't raise it down below you can't raise it on appeal. so the questions involved tended to be ones that were of jurisdictional basis. but, yes, it was not totally infrequent occasion. also pointing out the obvious thing that all of our cases did have counsel on both sides, and even with that kind of protection, i would say especially in the technological -- technologically regulatory complex cases which had a lot of different issues involving technology, i don't want to take up the committee's time, but i just couldn't help copying one sentence from one of these monstrous e.p.a. cases in which the court of appeals said this is the first challenge to the new source
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performance standards since the passage of the 1977 amendments. therefore, the court was rprised that neither party raised during the discussion below the appropriate standard of law in that discussion. they did not even mention the fact of a new major legislative effort. so even with the best kind of counsel it can happen. >> issues spotting is a challenging business. >> yes. >> even with counsel and without it reliance on a judge is often hazardous. i've never been a judge but i've litigated for a number of years and i've always been astonished at how cases that i've tried may raise issues on appeal that i thought were nsignificant and sometimes
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decided by a ruling without an opinion but i think that the reason i propose a constitutional advocate be involved in every decision that she or he thought was significant was to give the court the benefit of that kind of additional insight and guidance and perspective. i'm going to turn to my colleague, senator grassley, and then to senator franken for his questions. >> thank you. i'm going to ask ms. brand a question. but, ms. cook, if you want to follow-up with anything you're welcome to do that. ms. brand, you and ms. cook disagreed with the board's analysis and conclusion in a few key areas including the conclusion that the bulk metadata program isn't authorized under section 215. question, can you explain why you disagree with the board's analysis and conclusion on this point and why you believe that the program is lawful? >> sure.
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thank you, senator grassley. you know, i think the statutory question is difficult. it's not a simple question. certainly one which reasonable people can differ but at the end of the day i would agree with every single federal judge who has considered the statutory question, all of whom have upheld the program under the statute. there's a lot to say about the board's 40 to 50-page legal analysis on the subject, but just one thing that concerns me about their analysis. it seems to disregard the difference between national security investigations and criminal investigations. and one example of that is in the board's analysis of whether the relevance standard in the statute is met. part of that discussion, the board says grand jury subpoena, as you know, also has a relevant standard, has never been used to collect the volume of data that's collected under the 215 program. and that's just not the right question to ask because relevance is contextual. you have to ask, relevant to what? and information has to be relevant to a criminal investigation which is
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retrospectively and comparatively narrow. in the fisa context under section 215 information has to be relevant ongoing to a fisa investigation. that's a long-term, proactive preventive intelligence investigation into an entire terrorist organization. and so it shouldn't be surprising that a broader volume of data would be velarde vant to that that would be relevant to your typical criminal investigation. >> you and ms. cook also disagreed with the board's conclusion that the program should be shut down as a policy matter. the board found that the program's risks outweighed its benefits, but in your written statement you appeared to challenge both sides of that equation. you wrote that the program's actual inclusion on prifere is i is small and that it benefits -- its benefits can be be measured solely on the terrorist plots it disrupted. question, can you explain in more detail why you disagree with the board's policy decision and conclusion that the program should be terminated and why you believe that it's worth preserving?
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>> sure. i mean, the question boils down to whether the privacy comblicompations of the program outweighs the national security benefits and i board understates the benefits. on the privacy side, it's useful to stop for a minute and think about what the program is it's not collection of content of any communication. the government can't listen to you on phone calls with this program. it's literally a system -- series of phone numbers and the times they called other phone numbers with no names or any other personally identifiable information attached to them. it's just a bunch of numbers. the uses of it is limited. the government can't look at the information on the database unless they have a particular phone number that they have evidence that's connected to terrorism and they can look in the data to see which phone numbers talk to that phone numbers. again, no names. that exercising connecting phone numbers to phone numbers is what this program is about. in addition, you have the numerous levels of oversight of the program, the use of the program is incredibly strictly limited. if you take all of that plus
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the additional restrictions that we recommend be impose, i any the intrusion on privacy is very low. on and looking at whether this program is -- you have to look longer term into whether the next time there's a large-scale terrorist threat against the united states, could this program prevent it and i think the answer is clearly yes. there's a potential for that. you also have to remember that preventing a terrorist attack is not the only measure of value, because it's also valuable when the government can determine there is no terrorist attack. if you have, for example, a situation where there was evidence of a terrorist plot abroad and the government is trying to figure out if there is a domestic threat. if the government can determine there is no domestic threat, then they might not have to take an action like grounding all the airplanes in the united states. and that's also valuable, i think. >> ok. ms. cook, the board concluded unanimously that the balk metadata program is constitutional but neither you nor ms. brand joined the
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extended analysis contained in the report. did you find this a difficult or close constitutional question, number one, and number two, could you explain why you didn't join the analysis of the three other members of the board? >> thank you for the opportunity to answer that question. as to the fourth amendment, the board was unanimous that the program does not violate the fourth amendment. smith vs. maryland is the law of the land and the board was unanimous that the government is entitled to rely on that precedent. i declined to join the fourth amendment section as it was primarily an extended discussion of potential evolution in fourth amendment injuries prudence. i did -- jurisprudence. i did not find the prognostications particularly as depended very heavily on a sole concurrence in the jones
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decision. don't think that's an indicator necessarily of where the supreme court is going. as to the first amendment, i could not join that analysis as the first amendment analysis was of programs that simply do not exist. as ms. brand has explained, the program here is simply about numbers calling numbers. it's not associated with individuals' information. the majority, nonetheless, talks about the n.s.a. painting complete pictures of every americans' associational activities. that is not the program we were analyzing, i could not join the first amendment analysis. >> mr. medine, i'll ask you my last question. the board's report recommends the creation and an advocate to participate in the fisa court process. the report recommends, one, that the advocate should come from a pool of attorneys outside the government, two, that the fisa court should
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retain control over whether to call upon the advocate in a matter and, three, the advocate should not participate in or review all applications filed by the government. two questions together. could you walk through why the board felt strongly about each of these issues? and second, did the board meet with any judicial representatives or did their views play a role in shaping the board's recommendations? >> thank you, senator grassley, for the opportunity to respond. just answering your last point first, the board held two public workshops, as i mentioned earlier, and we took testimony from two fisa judges, judge robertson and judge karr and also judge beats. views of d form our the questions you raised. first, having advocacy outside
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the government. we thought they need to be independent and bring fresh views and seating them in the executive branch where the government is questioning the fisa court. we thought it made sense for them not to be made part of the executive branch. nd having them part to be -- to be part of the judicial branch. we thought a fresh perspective. have a panel of outside private lawyers chosen by the chief judge of the court with appropriate clearance or able to get clearance and work space to address these important questions in appropriate cases which i guess turns to the second question which is regard giving the judge control over cases. certainly in everyday routine cases there was not a need for special advocate. the judges have testified to us that they are very capable in handling much the way they andle search warrants, ex-
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parte, involving novel and technical issues where the judge's role takes place. so we wanted to give the judges' authority to invite the special advocates in where the judge deemed appropriate. we do want a reporting mechanism to make sure that the judges exercise that authority appropriately and so since the government is supposed to designate those significant cases in advance, we would like the court to report on how many cases were designated in that fashion and those and in such cases how much was a special advocate appointed. likewise, there are cases on their face appear to be technical or novel issues but the judge knows they raise important questions and we want the judge to be free, even in those cases, to expand the pool and also discretion as to when it's appropriate to bring someone in. and again i think that answers your last question. not all applications because probablely a significant majority of the -- probably a significant majority of the role is routine.
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significant programatic approvals where the judge is almost acting like an administrative agency, the judges themselves said they would value an outside opinion being brought in. >> thank you, mr. chairman. thank you, panel. >> thank you, senator grassley. senator franken. >> thank you, mr. chairman. and i'd like to thank the versight board for its work. all my questions are basically on transparency. on page 190 of your report you say that, "transparency is one of the foundations of ance." tic govern and i couldn't agree more. the american people hasn't given the american people even a rough estimate of how many people have had their information collected under section 215 or how many numbers have been collected. under current law the government doesn't have to.
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i have a bipartisan bill that would fix this. the surveillance transparency act. it would mean that we -- the government would have to say how many numbers, how many people's numbers have been collected and how much of -- how many have been queried, how many people have been queried. recommendation 9 of your report echos my bill. it says the government should give the american people more detailed report about section 215. what specific information should be included in these public reports, do you think? do you think this reporting should be required by law? anyone can take this. mr. dempsey, mr. medine. senator, i think the recent the recent, you know,
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agreement by the justice department to allow companies to disclose more information didn't actually address sort of alk collection question. assuming i understand your question correctly, the -- sort of bulk collection question. assuming i understand your question correctly, a million of the customers are affected, then that basically says -- 's a balk collection bulk collection against this entity and i believe that is sensitive information. i think a better way to address the -- >> wait a minute. when you say the entity, you mean the company? >> yeah. >> ok. but that's sensitive information in the sense, first of all, the companies would like to be able to say that. they would like to be more transparent.
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they've endorsed my bill. they support my bill. >> honestly, i think there may be a split between what the telephone companies want to do and what the internet companies . uld want to do i'm not sure about that. i do see -- i see a legitimate naming concern about or identifying or singling out -- >> but you don't have to single out. the government can say -- all it can say -- it just say how many numbers are caught up in the bulk collection. it isn't signaling out a phone company. isn't sing naling out -- --
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singling out -- >> i think the best question on the bulk thing is to have a statute that either authorizes bulk collection or doesn't authorize bulk collection. the fundamental conclusion of the majority was the statute, as you read it, doesn't read like a bulk collection statute. and if we're going to authorize bulk collection, then we should have a statute, in my view, designed for that purpose and explicitly setting out the parameters of what a bulk collection program would look like. to me that kind of legislative transparency is honestly more important than sort of operational transparency side. and here we're only -- i think we're only talking about the bulk collection which, again to my mind presents sort of a unique question about what the government says about when it's doing it. >> ok. let me talk to mr. medine.
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thank you. i'm asking what the government reporting should be. assuming that we keep the bulk collection, i'm not necessarily assuming, but if we do, to me it makes sense that the government says, how many numbers have been collected and how many have been queried, what is your opinion on that, your thoughts? > it has transparency of the government under programs authorized by congress. when you get down to the details of how many people's information is gathered, that's not always an easy thing to determine. i could have multiple phone numbers. so calculating how many -- >> well, you could say how many numbers have been caught up, right? >> yeah. >> that's easy to do. >> i think the tradeoff in this
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program by program some cases there are national security concerns. if we reveal we're collecting a certain amount of information under a particular program we may have tipped off to potential terrorists how to not communicate under that program anymore because now the government is collecting. i think there is a balance to be struck. the government is just negotiated an agreement. >> can't you put a rough estimate on how am -- i mean, f you say, you know, this many numbers we're collecting data on in our bulk collection and americans -- my feeling is this. americans basically distrust executive power and if they are not given information to make a decision about themselves about the legitimatey of things, then i assume that the power is being abused. and to me, if -- it would make -- i don't think you'd be giving anything away if you
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said this many millions of numbers are having their -- or tens of millions or -- are having their numbers, data collected about them and this many thousands are being queried, do you really think that -- >> i think under some circumstances it could be and i think the recent -- >> give me a circumstance. >> well, if you have a collection of some program of -- on the internet and we review -- >> i'm talking about the -- >> phone records? >> yeah. i'm talking about the bulk data. >> if we reveal how many phone records we're collecting it would indicate moum we're not collecting, for instance, and that may tip peoples off from, say, methods of communication. >> you say we're collecting information on 80 million numbers, does that tell you anything about what we're not collecting? >> it might. >> really? >> depends on the number of companies offering those services and that number of customers they have.
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but we think there's -- transparency was clearly important. it was major part of our report. fisa court decisions should be made public. the government should reveal its surveillance efforts, and the laws that congress pass should clearly reveal the authorities under which those programs operate. which think there is some potentialal national security concerns. and say, for instance, not allow reporting for two years after a new program is instituted might provide some guidance on how to balance those important -- both important concerns of transparency and national security. >> ok. hopefully we have a second round. thank you. sorry. i'm over my time. >> thank you, senator franken. we will have a second round assuming we can do it before the votes occur at 11:30. senator hatch. >> thank you, mr. chairman. welcome to all of you. good to see you all again. any of you could answer this question. i want to thank you for your board for contributing to this report. i'd like to start with an issue
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that received less attention than the n.s.a. surveillance program and that is the foreign intelligence surveillance act -- foreign intelligence surveillance court or the fisc. and they take full advantage from outside parties such as properly cleared outside lawyers. the court can do that now, in my opinion, without any new legislative authority. does the court take advantage of that assistance? any of you? >> i think the courts certainly have access to the government's technology experts in gathering information. beyond that, i can't really say what the court's done. >> anybody else? yes, judge wald. >> the former and current judges of the fisa court that we had one o, judge tell us that he didn't think it was clear to all the
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judges how -- or to what extent they could take advantage of outside help. i believe few instances, there was one in the review court of the fisc court and there's been a more recent situation in which they have allowed outside group that has petitioned to file a written presentation, but it was not clear. and we know of -- i know of no examples where they did take advantage of outside technical -- >> well, the board unanimously recommended some reforms to make the work of the fisa court more transparent. i am skeptical, however, about the recommendation that the scope of surveillance authority should be made public. the board was divided on that issue, as i recall, and i'm concerned that publicly outlining surveillance collection methods may compromise the investigative
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techniques employed by intelligence and law enforcement communities and pose a risk to national security. yesterday, the director of national intelligence issued, pursuant to presidential policy directive 28, the list of permissible uses of intelligence collected in bulk. now, it seems to me making public the purposes for which the government uses intelligence rather than the methods it uses to collect data intelligence strikes a better balance. i'd like your comment. perhaps from someone on both sides of the issue, if you could. >> i can start by explaining why i did not sign onto the 12th recommendation, which i think is what you're referring to. i agree with the majority in principle, but where programs can be or the outline of programs or the purposes of the programs can be revealed, they should be. but there's an important caveat to that which is consistent with the national security and i don't think that a program's
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legality depends on whether it's been disclosed to the public. i was concerned that that is what the board's recommendation implied. i think in our democracy where we rely on committees like this and on the intelligence committees to do oversight, there's necessarily going to be some things that occur in private and that's permissible. >> ok. >> i also would say i think it's difficult to draw conclusions about what can safely be disclosed publicly from the section 215 disclosures given that they followed the wholesale leak of the program. so i think we need to address this prospectively and taking into serious account what the potential damage could be from disclosure of previously classified programs. >> ok. i'm happy to welcome you all here again. judge wald, you and i have --
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>> i think we go back 30 years. >> i think we do. just happy to have all of you here. >> i was just going to -- >> go ahead. >> on the transparency, we -- our recommendation -- the majority's recommendation i think was fully cognizant of the fact that we in no way wanted the methods, operational or even the existence of a particular operation to be automatically disclosed. we did have testimony actually om a former ranking minority -- ranking majority, minority, member of the house intelligence committee that the so-called framework and purpose of many of the programs could be disclosed by carefully drawing these lines. . let me give an example.
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we are just about to begin or have begun our report on section deals the fisa act which th the collection of communications one side of which may be in the u.s. and one side f which is -- and that amendment which allows this program back in 2008, i believe it was, was openly debated before this body and before other bodies. we have just begun the investigation. i'm not about to try to preview any of our conclusions, but i will say this that the fact that how the program would operate in terms of the courts approving a target or minimumization and what kinds of categories of
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material could be put in the targeting, many of these things are right in the statute or in the legislative history in the reports that accompany it. my belief is that, again we have only begun our investigation, but that the government itself has said that the 702 program has been very, very valuable to it, and has said certain ripives of the government much more valuable, actually -- representatives of the government much more valuable, actually -- >> let me just mention this. it has been suggested that you believe the metta data program -- metadata program might be illegal. now, is that a fair characterization of your position? each of you can speak. >> no. >> no. >> why not? >> i was explaining earlier to
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senator grassley some of my reasons for it thinking that the statute's language can support the program. i think what people are reading too much into my statement that reasonable lawyers can differ on this. it's not the clear-cut of questions, but at the end of the day i think the program is legal. that's my opinion. >> similarly i believe that the program is authorized. a concern was noted with the majority's approach to relevance, i think there are a number of concerns that i have with the majority's legal analysis. for example the board has concluded that section 215 prohibits providers from producing documents to the n.s.a. instead of the f.b.i. sounds like a technical issue, but the board has concluded on that basis that the section 215 program is unlawful. if you read section 215 where it talks about production of
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tangible things, there is no requirement whatsoever that it be made to the f.b.i. the majority has, instead, cobbled together this prohibition and rested its legal analysis on this prohibition that does not appear on the face of the statute. >> if i could just ask one other question because i'm going to have to leave. let me just shift to the n.s.a. television -- telephone metadata program, which received most of the attention in these hearings and in the media. ms. brand, it's my understanding that the board is unanimous that the metadata program is constitutional, but divided on whether it is authorized by statute. is that a fair characterization? >> that's correct. >> in addition to the board of substantive conclusion about whether the patriot act authorizes the metadata program, i wonder whether the board should have delved into that issue at all. ms. brand, please summarize why
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you think the board should not have ventured into that area. >> thank you, senator hatch. i would be happy to. a board like ours which performs primarily an advisory function and is not a court, does not have to address every legal argument that's available, has to pick and choose and consider the ramifications of what it decides to address. i think frankly on the legal question here, the statutory question, it's not clear to me what -- it's not as we are addressing this as a matter of first impression. this program has been operating for years. it's been the subject of numerous judicial opinions. the legality of it will ultimately be resolved in cases currently pending in the courts. but more importantly i think where the board concluded also that there's a policy reason for shutting down the program, it just struck me as gratuitous and unnecessary to also say the program is illegal, because that has a very demoralizing and negative effect on the intelligence community. you want your intelligence
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agencies to aggressively protect the national security within the bounds of the law. you don't want them to be timid and be scared of the rug being pulled out from under them by being second-guessed years later when they did everything right by going to the court and operating under what they believe to be a legal program and so forth. i just thought it was a mistake to address the legality. >> senator, may i speak to that point just briefly. >> with the chairman's permission, yes. >> senator, when i first heard about this program and the fact that it was authorized by the court, i sort of felt, ok. it must be lawful, we'll look at it. maybe we'll find some additional tweaks that we can make to it and that will be it if it's been authorized by the court. that's the end of the story. and the more we looked at it, the more i came to the conclusion that a majority of the board came to the conclusion that the program just does not
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fit within the statute. that it was shoehorned into this statute. and i think nobody, with all respect to both the executive branch officials and the judicial officials, nobody looked at the statute as carefully as we did. and i think at the end of the day if we had come forward and opined on some balancing task or some other aspect and hadn't looked at the statute carefully, people would have criticized us, you didn't read the statute. so we -- i came to this conclusion slowly. i came to it a little bit to my own surprise, but as you read the statute the words just don't add up for this program. on the constitutional point i
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want to be clear, the board's majority report says, under application of existing case law. smith vs. maryland and the other third party record cases, if those were to be applied to this program, then you would conclude zero constitutional privacy interest in the data, therefore not unconstitutional. the problem is there is no case ever addressing the program -- a program of this scope until the two most recent district court cases. there is no supreme court case vs. ever applied the smith maryland doctrine, transactional records doctrine to such an extensive program. nobody knows. the bottom line is nobody knows what the supreme court would say when confronted with such an extensive program and an ongoing program of this kind. that's the bottom line actually,
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i believe. >> thank you. just ask ms. cook, welcome back to the committee. we have missed you. do you agree with ms. brand that the board should have stayed away from the issue of legality? and stuck to the policy questions regarding the n.s.a. metadata program? >> i think the decision to spend such an amount of time and -- >> as you know more than a dozen federal judges, most on the foreign intelligence surveillance court and u.s. district court concluded that the patriot act does provide authority for the metadata program. the president's review group who appeared before this committee came to that conclusion, and the attorney general who also was here just last month strongly holds that position. the board was split 3-2 on this. i just wanted to know why was the majority wrong on this
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issue? >> well, i -- >> in your view? >> i think there's two questions there. first, whether we should have engaged in such an extensive legal analysis. as you have noted this program is subject to extensive judicial oversight and it's currently subject to ongoing litigation in three district courts. we are a board of extraordinarily limited resources, particularly at the time we were considering this. the decision to do this both statutory analysis and also a fourth amendment analysis that really was prospective only had costs, we have not meaningfully begun our review of the section 702 program, nor have we begun to address any of the other priorities we had identified since the inception of our board. as to the question of whether the legal analysis was in craft,
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we discussed the relevance issue, we discussed the majority's view that the records could not be produced directly to the n.s.a., both of which i disagree with the majority's analysis and i would also disagree with the majority's analysis on the expa issue. as you are aware from 2001, one of the primary purposes of the amendments in 2001, section 215, was to eliminate any notion that section 215 could be used for some types of records but not for other types of records. the majority and the legislative language uses the term, any tangible things. the majority nonetheless imports from a completely different title of the code a modifier of the term "any." i could not join that type of analysis. a ould also say that's
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pleasure to be back to the committee today. >> senator hatch, could i indulge upon a 30-year relationship to address very briefly a few of the points here. >> i have watched you-all that time, by the way. >> it's been a mutual watch. i would simply like to point out that our governing statute gives us -- tells us to, it says, the board shall continually review actions by the executive branch related to efforts to protect the nation from terrorism to determine whether such actions are consistent with governing laws. i think part of our mandate has been to look at the consistency of the statute with the laws. i would also point out that we had requests from a number of senators and a number of members
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of the house to look at 215 and 702 and in each of the letters it was mentioned that we should look at the statutory basis. the other point which i think is certainly worth thinking about are chel brand's concern very limitly motivated concern that if you say that the n.s.a. people who we were all impressed with their good faith and their diligence, if we say that they were operating under a statute which didn't give them the authority to do what they are, this could be somewhat morale destructive. i only wish to point out again drawing upon my 20 years is that which i would say the average percentage of times in
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which an appellate court or somebody said that the lower court or the agency, primarily the agencies in our cases, that the agencies had operated outside the mandate of the statute were numerous. and i think it was never suggested that we were saying these were bad people or that they had done something that was wrong. it was legal interpretations are difficult and complex legislation, and the fact that another body may disagree with the agency's take is something which i think these dedicated public servants are used to and i would be very surprised if it really decreased their sense of loyalty and dedication. >> senator whitehouse. >> thank you, chairman. let me just ask a timing question to -- first. when did the exercise that led
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to the report that we have in front of us begin? >> it began in june of last year. >> after the disclosures? >> yes, after the disclosures. a number of members of congress and the president asked us to conduct the study of the 215 program, and we embarked on it almost immediately. >> you were aware of the 215 program at the time? >> prior to the unauthorized disclosures? i only joined the board in late may -- >> was the board aware of the 215 program beforehand? > as i recall, senator whitehouse, we learned of the program shortly before that. i can't give you an exact date, @month or d put it several weeks before. -- put it at a month or several weeks before. >> why was it that you were not aware of this until just shortly before